Laws governing recall

The information on this page is meant for informational purposes only, and does not constitute legal advice. Those interested in initiating a recall should consult with their local authoritative bodies.

36 states have provisions allowing for recall of certain elected officials at the local and/or state level.

Background

Recall is a process by which citizens may remove elected officials their positions before the end of their term.[1] It should not be confused with the legislative process of removing officials called impeachment. It should also not be confused with retention elections held in some some states for members of the judiciary.

Recall election of state officials

There are provisions for recalls elections of state officers in 19 states. The process begins with a petition drive and end with an election.[2]

Recall trial of state officials

Virginia the has a process of recall by which a trial in the state Circuit Courts is petitioned. Virginia is the only state to use this process. Virginia laws clearly state local officials can be recalled. Whether this would apply to state level officers is unclear given ambiguous legal language and issues with the jurisdiction of the court. There is no precedent of a Virginia state legislator or governor having faced recall.[3][2]

State officials that can be recalled

The following table indicates which elected state officials (in general) can be recalled based on state law.

"A member of the senate or the house of representatives, an executive officer of the state identified in section 1 of article V of the constitution, or a judge of the supreme court, the court of appeals, or a district court is subject to recall from office by the voters..." (MN Con. Art. 8, §6)

"The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress..." (NJ Con. Art. 1, §2(b))

"Upon petition, a circuit court may remove from office any elected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court..." (VA Code 24.2-233)

Recall of local officials

At least 34 states allow for recall of local elected officials. This may only apply in limited situations in some states, which is generally listed below. Other states not listed may also have limited local recall due to home rule provisions. In those cases, the states allow cities and counties to adopt their own charters, which could then provide for local recall, even if no other city or county in the state allows it.[6]

Recall of federal officials

The United States Constitution does not provide for recall of any federally elected official. The option was considered during the drafting of the document in 1787, but was not included in the final version. Some states constitutions have stated the right of citizens to recall their members of congress, but whether it constitutionally legal at the federal level has not been yet been ruled upon by the United States Supreme Court. One of the closest noted legal precedent is U.S. Term Limits, Inc. v. Thornton, in which the Supreme Court decided that states did not have the right to impose new terms, qualifications, or conditions of service on federal officials.[7]

Some states have released opinions and rulings on recall of members of the United States Congress. Attorney generals in Arkansas (2010), Louisiana (2009), Kansas (1994), Nevada (1978), and Oregon (1935) all gave opinions against recall of federal officials. The Attorney General of Wisconsin in 1979 give an opinion that state administration could not reject a petition for recall of a member of congress. The Supreme Court of New Jersey ruled against federal recall in 2010. That same year the Supreme Court of North Dakota upheld an opinion by the Attorney General of the state against recall of federal officials. Michigan courts stopped a recall petition against a member of Congress in 2007. And, a federal court in 1967 dismissed a case from Idaho where petitioners hoped to force the state to accept petitions seeking recall of a Senator.[7]

States with no recall provisions

Whether grounds are required

In some states that allow recall, a recall can only occur under certain circumstances. An example of this is Georgia, where an elected official may only be recalled under the circumstances of "an act of malfeasance or misconduct while in office, violation of the oath of office, failure to perform duties prescribed by law, or willfully misusing, converting, or misappropriating, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed."

In other states, recalls may proceed without having to fit within a prescribed set of grounds.

Grounds required

Legend:

State and local recall

Local recall only

States that allow recall elections only if they fit within certain prescribed grounds include:

Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official. (Ga. Code §21-4-3(7) and 21-4-4(c))

Conviction for a felony, misconduct in office, incompetence, or failure to perform duties prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured. (KS Stat. §25-4302)

Serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime (Article VIII, §6, Minnesota Constitution)

Physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, conviction of certain felony offenses (enumerated in Title 45). No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct. (Mont. Code §2-16-603)

Authorized in the case of a general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission (Article IV, §1, Rhode Island Constitution)

Neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office, or upon conviction of a drug-related misdemeanor or a misdemeanor involving a "hate crime" (§24.2-233)

↑One New Hampshire statute says that municipalities may optionally incorporate the right of recall in municipal charters. However, a second statute does not include recall in its list of allowable citizens powers. As a result, according to an email dated January 3, 2011 from David Scanlan, the Deputy New Hampshire Secretary of State to Leslie Graves, Ballotpedia's editor, "The courts in New Hampshire have not supported recall provisions in municipal charters because they are not granted that authority in state statute."

↑Some cities in North Carolina, such as Morganton, are known to recall provisions in their city charters.